BOARD DATE: 26 October 2010
DOCKET NUMBER: AR20100010066
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he was permanently promoted to the rank/grade of sergeant (SGT)/E-5.
2. The applicant states he was given his stripes. He further states he does not want any monetary compensation but just the promotion he earned.
3. The applicant provides a copy of the following:
* Photographs
* Four letters of support
* Tunnel Map
* Award recommendation
* ORD Form 700 (Conduct and Efficiency Rating), dated 15 May 1967
* Cold War Certificate of Recognition
* Medical Record, dated 12 October 1982
* DD Form 214 for the period ending 19 May 1967
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of
Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant's records show he was inducted into the Army of the United States on 20 May 1965 in the rank/grade of private (PV1)/E-1. He was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).
3. He served in the Republic of Vietnam from 18 April 1966 to 27 October 1966. He was assigned to Company A, 2nd Battalion, 35th Infantry from 18 April 1966 to 14 May 1966 and to Headquarters and Headquarters Company, 2nd Battalion, 35th Infantry, 3rd Brigade Task Force from 14 May 1966 to 27 October 1966.
4. Item 33 (Appointments and Reductions) of his DA Form 20 (Enlisted Qualification Record) shows the highest rank/grade he held was SP4 (T)/E-4 with a date of rank of 1 December 1966.
5. Headquarters and Headquarters Company, 1st Battalion, 3rd Brigade, Unit Orders Number 39, dated 3 December 1966, appointed the applicant as an "ACTING SERGEANT (E5)." This order also indicates that his previous appointment as an ACTING CORPORAL (E4) was rescinded.
6. His records show he was honorably released from active duty on 19 May 1967 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation. Items 5a and 5b of his DD Form 214 show the entries "SP4 (T)" and "E-4," respectively.
7. Army Regulation 600-200, chapter 7, then in effect, contained Army-wide promotion policy and procedures. It stated that the promotion of enlisted personnel to grades E-5 through E-9, appointments, grade reductions, and grade restorations were announced in routine orders.
8. It further stated that company, troop, battery, and separate detachment commanders may appoint qualified individuals as acting corporals (E-4) and acting sergeants (E-5), to serve in position vacancies existing in their units.
Soldiers in this status were not entitled to pay and allowances for such higher grades and service was not credited as time in a higher grade for promotion or date of rank purposes. Appointments were terminated at the discretion of the unit commander, upon reassignment, when casual groups reached their destination, or upon assignment of a regularly promoted noncommissioned officer.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends his rank/grade on his DD form 214 should be corrected to show SGT/E-5 instead of SP4/E-4.
2. The evidence of record shows at the time of his separation on 19 May 1967, he held the rank/grade of SP4/E-4 (Temporary). Item 33 of his DA Form 20 does not show an entry for a promotion to SGT/E-5. However, his record does contains unit orders, dated 3 December 1966, that appointed him as an acting sergeant (E5). Accordingly, this appointment was automatically terminated when he departed the unit and separated from active service.
3. Promotions of enlisted personnel to grades E-5 through E-9 were announced in routine orders. In the absence of such promotion orders there is no basis for granting the applicant's requested relief.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____x_ ____x____ ____x____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case
are insufficient as a basis for correction of the records of the individual concerned.
_________x______________
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20100010066
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ABCMR Record of Proceedings (cont) AR20100010066
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